Bland v. Kelly

Appellate Division of the Supreme Court of New York

Bland v. Kelly

56 A.D.2d 326, 869 N.Y.S.2d 13

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 18, 2008

StatusPublished

This text of 56 A.D.2d 326 (Bland v. Kelly) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bland v. Kelly, 56 A.D.2d 326, 869 N.Y.S.2d 13 (N.Y. Ct. App. 2008).

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Opinion

Determination of respondent Police Commissioner, dated January 29, 2007, finding petitioner guilty of being absent from two assignments without permission or police necessity and imposing a forfeiture of 20 vacation days, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Leland G. DeGrasse, J.], entered August 1, 2007), dismissed, without costs.

Substantial evidence, including petitioner’s testimony admitting that she was absent from two overtime assignments, supports respondents’ findings (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Although petitioner claims that she had the approval of her supervisor and the desk officer to be absent from one of the assignments due to a family emergency, this claim was denied by the desk officer, and petitioner failed to ensure that there was coverage for the high-security post.

The penalty of a forfeiture of 20 vacation days does not shock the conscience in light of petitioner’s service record and her admitted absence from two overtime assignments (see e.g. Matter of Penney v Kelly, 16 AD3d 342 [2005]). Concur—Tom, J.E, Andrias, Friedman, Catterson and Acosta, JJ.

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Determination of respondent Police Commissioner, dated January 29, 2007, finding petitioner guilty of being absent from two assignments without permission or police necessity and imposing a forfeiture of 20 vacation days, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Leland G. DeGrasse, J.], entered August 1, 2007), dismissed, without costs.

Substantial evidence, including petitioner’s testimony admitting that she was absent from two overtime assignments, supports respondents’ findings (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Although petitioner claims that she had the approval of her supervisor and the desk officer to be absent from one of the assignments due to a family emergency, this claim was denied by the desk officer, and petitioner failed to ensure that there was coverage for the high-security post.

The penalty of a forfeiture of 20 vacation days does not shock the conscience in light of petitioner’s service record and her admitted absence from two overtime assignments (see e.g. Matter of Penney v Kelly, 16 AD3d 342 [2005]). Concur—Tom, J.E, Andrias, Friedman, Catterson and Acosta, JJ.

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Bluebook (online)

56 A.D.2d 326, 869 N.Y.S.2d 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bland-v-kelly-nyappdiv-2008.

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